connolly trends in dfps termination cases...anytime to abuse or neglect your children or put...

“Trends in DFPS Termination Cases (A Call for Reform)”

Presented at the: Robert O. Dawson Juvenile Law Institute 21st Annual Juvenile Law Conference Omni Bayfront Hotel, Corpus Christi, Texas February 19, 2008 Presented by: William B. Connolly* William B. Connolly & Associates 2930 Revere, Suite 300 Houston, Texas 77098 Telephone (713) 520-5757 Facsimile (713) 520-6644 E-mail [email protected]

mailto:[email protected]

Trends in DFPS Termination Cases (A Call for Reform) For almost thirty (30) years, I have been practicing juvenile and family law in Texas. For

twenty-five of those years, I have been representing and advocating for children and parents in

cases involving the Department of Family and Protective Services (“DFPS”). At the heart of this

litigation, advocates on all sides are driven by the legislative and common law mandate “best

interest of the child”. I have met some people, who believe so stridently that their version of

what constitutes best interest is the only way to safeguard children that they ignore the evidence

available to be presented in the case. They are convinced that the “acorn does not fall to far from

the tree”; “people never change”; “drug addiction is a choice not a disease”; “if you are able at

anytime to abuse or neglect your children or put yourself in a circumstance where others abuse or

neglect your children, we can never trust your ability to protect your children again”; “if you

have been to prison, it does not matter what you do to try to re-integrate into society, you will

never measure up”; “rehabilitation does not work”. The list goes on and on and while it would be

easy to dismiss these statements as over simplifications, exaggerations, distortions or untruths the

fact is that some individuals are not equipped to be parents. There are parents whose conduct, by

act or omission, present very real and very present danger to their children. There are parents

who when faced with allegations of abuse or neglect, do nothing at all to secure the return of the

children and reunification of the family. There are parents who have engaged in such horrible

conduct, either through action or omission, even the most reasonable advocates could not support

reunification. Frankly, there are cases where termination of parental rights is the only viable

option available to the Court. However, the ”aggravated circumstances” cases are not the

majority of the cases that involve termination. The truth is that sometimes parents fail their

children; sometimes the system fails the parents; sometimes the system fails the children;

sometimes the system fails both the children and the parents; sometimes the system and the

parents fail the children and sometimes it all works very well. Because we statistically and

politically measure from failure rather than success, it is an unfortunate reality that a failure in

this system can have devastating and tragic consequences to the child and the child’s family.

The positions described above are met with the same stridency from parental advocates

who rail against a system they feel passionately to be dramatically skewed in favor of DFPS and

view the system as “adverse to parents, families and especially children.” They assert that

caseworkers prepare family service plans that would be extremely difficult, if not impossible, for

an employed, functioning, normal college graduate to complete within 12 months. They take a

population of mostly poor, undereducated and situationally impoverished families, or families

and parents with addiction or mental illness, or deficits in rated intelligence (IQ), and require

them to work closely with underpaid caseworkers who are extremely overworked, find it

impossible to properly service the assigned caseload and follow up on DFPS commitments. They

do this at a minimum by failing to timely issue 2054 authorizations for services, assessments or

counseling. Caseworkers complain that they are subjected in court to interrogation by lawyers

who don’t know them, the cases or even the client the lawyer purports to represent. This is a

recipe for disaster. With a turnover rate of substitute care workers of over 50% a year and

supervisors and caseworkers being forced to do case work for sub-care units decimated by

resignations, the resulting services, options, responsiveness and quality of care for children have

all suffered. When case work quality declines and frustrated substitute care caseworkers resign,

the quality and quantity of evidence and availability of witnesses also declines. Corners get cut,

vital evidence gets lost or becomes unavailable and grounds for termination become harder and

harder to prove.

One result of this situation has been a legislative trend towards alterations to DFPS

structure and attempts to privatize DFPS. The immediate impact of this legislative trend was to

send quality DFPS employees to private contractors that were positioning to be the privatizing

force and contract providers to the government for substitute care. Simultaneously with the

attempt at privatization, the legislature acted to stave off political embarrassment and to protect

children from injuries and death because of inadequate DFPS investigations. Huge funding shifts

by the legislature to investigation units created a massive transfer of experienced caseworkers

from substitute care to investigations. With more investigations, additional caseloads now had to

be handled by substitute care staff whose ranks had already been raided on two (2) separate

fronts. As such, the substitute care units are understaffed and undertrained.

The second legislative trend has been to add to the grounds for termination of parental

rights and to make the post judgment termination process immensely cumbersome and full of

traps for parents and their lawyers. The legislature made appellate timetables ridiculously short

and created situationally unconstitutional procedural steps which have guaranteed a significant

increase in the number of termination cases and appeals. Many believe (and some courts have

held) that these steps can have unconstitutional applications. Not only has there been a

significant increase in the number of termination cases and appeals, an alarmingly higher

percentage of these appeals are being turned away because the trial counsel has failed to properly

perfect an accelerated appeal and timely file a statement of appellate points.

The trend of recent Texas appeals of termination cases reflects more and more appellate

courts stating they are forced to follow the mandates of a statute which is, at best,

constitutionally suspect, even though this results in parents losing their parental rights, without

an adequate opportunity to be heard on appeal in a fair proceeding, i.e., without the merits of

their appeal even being considered. If we as a society, regardless of our individual political or

religious values and ideology believe that the government should not be able to interfere in and

seek to forever terminate an individual’s rights to their children without a fair and equitable trial,

should we not also believe that the appointed counsel for indigent parents should treat them with

the same dignity and level of preparation that paying client’s receive from their counsel? Should

we not expect that reasonable investigations and discovery on the parent’s behalf should be done

prior to trial and that witnesses should be called to testify on their behalf? Wouldn’t it be a basic

element of representation in what has been characterized as a “death penalty” civil case, that

several client conferences should have occurred with counsel prior to trial?

In this respect, the most significant cause of the most significant trend in DFPS

termination cases is antithetical to our constitutional safeguards of due process. As a lifetime

advocate for children at trial and parents on appeal, it is my belief that §263.405 of the Family

Code should be repealed or significantly amended. While claiming to be designed as a way to

reduce post-judgment delay, this statute serves no useful purpose other than to prevent parents

from presenting their claims on appeal. The appellate process, as it existed before enactment of

§263.405 was in my experience a faster track to final permanency orders. However, this may not

currently be the case statewide, given the number of Appellate Courts which, while questioning

the constitutional validity of the law, find that they are legally constrained to follow it.

DFPS presumes, despite its staffing problems and inconsistencies that it always acts in

the best interests of the children. However, when abused and neglected children are removed

from their home and then abandoned or marginalized by an inadequate caseworker, or a

dysfunctional and underfunded agency, the children often grow up convinced that they caused

the loss of their entire family by acknowledging that abuse or neglect occurred. The burdens on

the children increase if there is any statewide accuracy to the assertions (as some foster parents

disclose) that they have never seen a caseworker or an attorney or guardian of the child at their

home. Some children traumatized by abuse or neglect clearly express a desire to be free from

their parents and/or abusers. However, some children traumatized by abuse or neglect feel

strongly that DFPS is harming them further by restricting or ending their parental contact. DFPS

too often takes action that can only be described as punitive to the parents rather than addressing

the best interests of the child. It is unnatural and unhealthy for a child that has a well-developed

bond to a parent (even a parent who may have abused or neglected the child) to be disconnected

from all family and to have all contact reduced to supervised office visits for one (1 ) hour, twice

a month. This is especially true when the Family Service Plan has a primary goal of family

reunification. There appears to be no sound psychological basis for the children, to be cut off all

contact between parent and child pending the outcome of an appeal or for the position that

supervised visits at DFPS offices are in the best interest of children prior to a trial but are not in

the best interest of the child after cases are reversed on appeal of legal or factual insufficiency of

the evidence.

The citizens of Texas, especially the children in DFPS custody, need and deserve a

system that truly recognizes that the constitutional dimension of the parent-child relationships

flows both ways. While the parents have the constitutional protections, so do the children. They

are situationally helpless and arguably, as victims, should have a greater right to assert

constitutional protections for themselves. The children have a constitutional right to and a

protected interest in the preservation of their relationships with their parents and family.

Wrongful termination orders harm the children as well as the parents. It is within this prism,

viewing the trends in termination cases, we should ask that as lawyers, advocates, and judges

should we support repeal or significant amendment of this statute?

Following the legislative trends, there have been some very interesting and sometimes

conflicting decisions in our appellate courts in these termination cases. A significant number of

decisions have dealt with the legislative limitation on the rights of parents to appeal termination

of their parental rights. In my own very unscientific survey, I have never witnessed such

uniform distaste for a section of law, than this section. From all areas of Texas jurisprudence

lawyers, judges and scholars question the scope and intent of §263.405 (b) and (i) and whether

or not the statute is unconstitutional. It has been held to be unconstitutional, as applied, and the

import of the legislation appears to be, in application, an intention to silence parents regardless of

the merits of the case. What is apparent is that our appellate courts feel constrained to reluctantly

follow a statute that mandates them to eliminate an appeal without any consideration of the

merits.

A second and related trend is the confusion of the degree of relief granted when a Decree

of Termination is reversed. Is the conservatorship order appointing DFPS as Managing

Conservator after termination subsumed within and created as a result of the termination or does

it operate independently? After (2) panels on the First and Fourteenth Courts of Appeals reached

diametrically opposite conclusions, the Texas Supreme Court recently upheld a post judgment

DFPS Sole Managing Conservatorship Order based upon the pleadings, proof and absence of a

Statement of Appellate Points on the issue of Managing Conservatorship, even though the

termination finding was reversed and rendered in favor of the parent for legal insufficiency of the

evidence. The issue of Conservatorship was not included in the Statement of Appellate because

the issue had never been really presented by either party at trial. The case was tried as a

termination case and after the request for termination was granted, DFPS was appointed as Sole

Managing Conservator, as required by the Family Code. In addition, the findings of

conservatorship should also include possessory conservators. A finding of termination does not

usually lend itself to an award of Managing Conservator or Possessory Conservator to the now

non-existent parents. This decision puts trial counsel in a very untenable position, of having

to file a Statement of Appellate Points on all conceivable, yet undiscussed and unfound

grounds that might arise later. If the intention of the legislature by enactment and amendment

of §263.405 was to speed up permanency, it has failed as miserably as the privatization of DFPS.

I. §263.405 Appeal of a Final Order

(Case Law and Questions of Constitutionally)

The legislative mandates of an accelerated appeal and the specific requirements of the

statute take precedence over any procedural rules to the contrary. This statute applies in both

terminations and conservatorship cases involving DFPS. The statute, as amended in 2005,

provides as follows;

FAMILY CODE

CHAPTER 263. REVIEW OF PLACEMENT OF CHILDREN UNDER CARE OF

DEPARTMENT OF PROTECTIVE & REGULATORY SERVICES

Sec. 263.405. APPEAL OF FINAL ORDER.

(a) An appeal of a final order rendered under this subchapter is governed by the rules of

the supreme court for accelerated appeals in civil cases and the procedures provided by

this section. The appellate court shall render its final order or judgment with the least

possible delay.

(b) Not later than the 15th day after the date a final order is signed by the trial judge, a

party intending to appeal the order must file with the trial court a statement of the point or

points on which the party intends to appeal. The statement may be combined with a

motion for a new trial.

(c) A motion for a new trial, a request for findings of fact and conclusions of law, or any

other post-trial motion in the trial court does not extend the deadline for filing a notice of

appeal under Rule 26.1(b), Texas Rules of Appellate Procedure, or the deadline for filing

an affidavit of indigence under Rule 20, Texas Rules of Appellate Procedure.

(d) The trial court shall hold a hearing not later than the 30th day after the date the final

order is signed to determine whether:

(1) a new trial should be granted;

(2) a party's claim of indigence, if any, should be sustained; and

(3) the appeal is frivolous as provided by Section 13.003(b), Civil Practice and

Remedies Code.

(e) If a party claims indigency and requests the appointment of an attorney, the court shall

require the person to file an affidavit of indigency and shall hear evidence to determine the

issue of indigency. If the court does not render a written order denying the claim of

indigence or requiring the person to pay partial costs before the 36th day after the date the

final order being appealed is signed, the court shall consider the person to be indigent and

shall appoint counsel to represent the person.

(f) The appellate record must be filed in the appellate court not later than the 60th day

after the date the final order is signed by the trial judge, unless the trial court, after a

hearing, grants a new trial or denies a request for a trial court record at no cost.

(g) The appellant may appeal the court's order denying the appellant's claim of indigence

or the court's finding that the appeal is frivolous by filing with the appellate court the

reporter's record and clerk's record of the hearing held under this section, both of which

shall be provided without advance payment, not later than the 10th day after the date the

court makes the decision. The appellate court shall review the records and may require the

parties to file appellate briefs on the issues presented, but may not hear oral argument on

the issues. The appellate court shall render appropriate orders after reviewing the records

and appellate briefs, if any.

(h) Except on a showing of good cause, the appellate court may not extend the time for

filing a record or appellate brief.

(i) The appellate court may not consider any issue that was not specifically presented to the

trial court in a timely filed statement of the points on which the party intends to appeal or

in a statement combined with a motion for new trial. For purposes of this subsection, a

claim that a judicial decision is contrary to the evidence or that the evidence is factually or

legally insufficient is not sufficiently specific to preserve an issue for appeal.

Added by Acts 2001, 77th Leg., ch. 1090, Sec. 9, eff. Sept. 1, 2001. Amended by Acts 2005,

79th Leg., ch. 176, Sec. 1, eff. Sept. 1, 2005.

A partial list of cases that affirmed termination of the parent-child relationship based

upon un-preserved error due to the failure of counsel to timely specify, within a statement of

Appellate Points, the points upon which the party intends to appeal includes the following:

1. Adams v. DFPS , (No 01-06-00243-CV) (Tex App. - Houston[1st District] 02/22/07)

(No pet.) (mem. op.)

M appealed legally and factual sufficiency of only the best interest finding and did not

include a challenge to the grounds in her Statement of Appellate Points.

2. In re B.S., D.R.S. and P.W.S (No 09-06-293-CV) (Tex. App. - Beaumont) (05/22/97)

(no pet. h.) (mem op)

M failed to raise her claim of ineffective assistance of counsel or the unconstitutionality

of §263.401(I) in her Statement of Appellate Points.

3. In re C.B.M AND M.H. (No 08-06-00136-CV) (Tex App. - El Paso) (12/14/06),

(no pet.) (mem. op.)

A statement of Appellate Points was not filed by M. The Court cannot consider any

points not included in a Statement of Appellate Points.

4. In re C.M. 208 S.W. 3rd 89 (Tex. App. - Houston [14th Dist] 2006, no pet.)

M did not file a Statement of Appellate Points. Accordingly, the court may not consider

any

of the issues she has raised on appeal.

5. In re D.A.R., 201 S.W. 3rd (Tex. App. - Forth Worth 2006, no pet.)

Questioning the constitutionality of §263.405(I) the court held that they were barred by

the

legislature from considering points on appeal because they do not appear in a Statement

of Appellate Points or Motion for New Trial.

6. In re E.A.R., EAR and I.D.A 201 SW 3rd 813(Tex. App - Waco 2006, no pet.)

M attempted to appeal the termination of her parental rights. M failed to file a Motion for

New Trial or Statement of Appellate Points. Accordingly, the court could not consider

the points on appeal.

In a concurring opinion, Justice Vance questioned constitutionality of §263.405(I).

7. In re E.J.W., C.L.W, and D.G.G. (No 04-06-00219-CV) (Tex. App - San Antonio)

(10/11/06) (no pet.) (mem. op.)

M attempted to but was precluded from raising a point on appeal that was not included in

her Statement of Appellate Points.

8. In re H.H.H. AND E.A.H. (No. 06-0. - 00093) (Tex. App. - Texarkana) (10/04/06)

(no. pet.) (mem. op.)

The failure to file a Statement of Appellate Points does not deprive the Appellate Courts

of jurisdiction, it just precludes consideration of any issues on appeals.

9. In re J.F.R., J.B.R., J.A.CR and J.C. (No. 09-06-115-CV) (Tex App. - Beaumont)

(03/08/01) (no pet.) (Mem. Op.)

M and F appealed termination and filed a Statement of Appellate Points but did not

include in the Statement of Appellate Points their claims of unconstitutionality or

ineffective assistance of counsel. Accordingly, they could not be considered on appeal.

10. In re J.H. , (No 12-06-00002-CV) (Tex App. - Tyler) (01/24/07) (no pet) (mem. Op)

In a case where a trial court denied the termination request and parents did not file a

Statement of Appellate Points, the court was powerless to consider the issues raised on

appeal.

11. In re J.W.H AND C.B.K , (No 10-06-00083-CV) (Tex App. - Waco) (03/21/07)

(no pet) (mem op)

The lack of specificity in the Statement of Appellate Points (i.e. DFPS did not meet it

burden of proof) failed to preserve error for review.

12. In re M.D. , (No 05-06-00779-CV) (Tex App. - Dallas) (05/07/07) (no pet. h.)

(mem op.)

F failed to file a Statement of Appellate Points so the court could not consider any issue

not raised within the statutory time limit.

13. In re M.N. , (No. 11-06-00228-CV) (Tex App, - Eastland) (05/10/07) (mem.op)

The statute does not allow for any extension of time to file a Statement of Appellate

Points.

14. Pool v DFPS, (No. 01-05-01093-CV) (Tex App. - Houston [1st District]) (03/01/07)

(no pet.) (mem. op)

F appealed termination of his parental rights but filed no Statement of Appellate Points.

The court questioned the constitutionality of the statute.

15. In re R.A.P. III , (No. 14-06-00109-CV) (Tex App. - Houston[14th District])

(01/25/07) (pet. Denied) (mem op)

M appealed termination but failed to include her appeal of the denial of her jury trial

request in a Statement of Appellate Points.

16. In re R.C. and R.C.C. Jr. , (No 07-06-0044 - CV) (Tex App. - Amarillo) (4/25/07)

(no pet.) (mem op)

F appealed termination but filed his Motion for New Trial and Statement of Appellate

Points but did not timely file these documents. Both the Majority Opinion and the

Concurring Opinion express concerns over the constitutionality of this statute.

17. In re R.J.S. AND M.S. , (Tex App - Dallas) (04/11/07) (pet filed) (mem op)

M failed to file a Statement of Appellate Points. Accordingly, no error was preserved.

18. In re R.M.R. , (No 13-06-351-CV) ( Tex App. - Corpus Christi) (no pet) (mem. op.)

M did not file a Statement of Appellate Points.

19. In re S.C. (No 06-07-00051 - CV) (Tex App. - Texarkana) (04/27/07) (no pet)

(mem. op)

M failed to file Statement of Appellate Points

20. In re T.R.F. , (No 10-07-00086 - CV) (Tex App. - Waco) (08/15/07)

Issues not raised in a Statement of Appellate Point were waived.

21. In re J.A.J. (No.07-0511) (Tex.) (11/20/07)

M appealed the termination decree of the trial court. The Fourteenth Court of Appeals

reversed and rendered. DFPS sought review which was granted on the issue of whether an order

appointing DFPS as managing conservator survives a reversal and rendition on the termination

where the conservatorship appointment was not assigned as error in the Statement of Appellate

Points. The trial court had made a finding that the appointment of a parent as managing

conservator would significantly impair the child’s physical health and emotional development.

DFPS had pled for managing conservatorship pursuant to §153.005 and §263.404. DFPS also

cited §153.131. The Court reviewed the relevant statutory provisions §153.002(Best Interest);

§153.005 (Appointment of Sole or Joint Managing Conservator); §153.131 (Presumption of

Parent as Managing Conservator). If the Court terminates parental rights, it must have (in this

case) appointed DFPS as Managing Conservator (§161.207).

The Family Code further provides that the Court may render a final order, without

terminating parental rights, if a finding is made that the appointment of a parent would

significantly impair the child’s physical health or emotional development and appointment of a

relative or other person would not be in the child’s best interest. The Supreme Court agreed that

§263.404 does not apply when the trial court enters an order of termination of parental rights but

disagreed that the appointment of DFPS was solely as a consequence of or derivative from the

termination proceedings. While evidence supporting termination could be insufficient, the same

evidence could still support the appointment of DFPS as Managing Conservator under §153.131.

The Supreme Court further analyzed the differences in both the quantum of proof and

standards of appellate review (firm belief or conviction or abuse of discretion) and that a

decision under one standard would not necessarily be the same under the other standard.

In response to Respondent’s “de facto termination” arguments, the court pointed to the

trial court’s jurisdiction to modify a conservatorship order, a parent’s right to bring suit, and the

mandatory post judgment conservatorship review hearing, under §263.002 and §263.501. The

Court of Appeals did not address the financial inability of most of these parents to wage a

modification proceeding against the government.

A Motion for Rehearing has been filed seeking a change to the opinion that would

mandate the appointment of a parent as possessory conservator (in the absence of a finding under

§153.191) and the imposition of minimal restrictions on parental possession under §153.193

22. In re A.M.T. (No. 09-06-525-CV) (Tex. App. - Beaumont) (11/29/07)

M appealed termination of her parental rights. Judgment was signed on September 20,

2006. M did not file a Statement of Appellate Points by October 5, 2006. On October 16, 2006'

M requested the court to appoint her counsel on appeal. The court initially held that it could not

consider any points on appeal because no Statement of Appellate Points was filed. However,

counsel’s unjustifiable failure to preserve certain issues for review, may deprive a parent of due

process. To prevail in a claim of ineffective assistance of counsel, M had to establish both

deficient performance by counsel and prejudice. Any claim of ineffective assistance must be

firmly founded in the record and the record must affirmatively demonstrate the ineffectiveness.

Although Appellate counsel was appointed after the 15 days had expired, M was still represented

by trial counsel and the court refused to speculate as to why trial counsel did not file the

Statement of Appellate Points. M failed to present evidence to support her claim on either

November 8, 2008 or when the Court remanded the case to the trial court, ordering the trial court

to appoint appellate counsel. To establish prejudice, M would have had to show that counsel’s

failure to file a Statement of Appellate Points prevented her from asserting a valid challenge to

the factual sufficiency of the evidence. The Court then reviewed the evidence, found it to be

factually sufficient and thus M was not denied effective assistance of counsel. M also failed to

establish why or how counsel’s decision at trial prejudiced her.

23. In re J.X.P ,(No. 07-07-0356-CV) (Tex. App.- Amarillo) (1/11/2008)

“While several of our sister courts have questioned the practical application and

constitutional validity of this statute, every appellate court called upon to address this question

has agreed that the clear language of the statute prohibits appellate courts from considering

points not properly preserved by the timely filing of a Statement of Appellate Points.” While the

court recognized the parent-child relationship to be of constitutional dimension and that the

statutory limitation on the right to appeal under §263.405 can have harsh results, the court

refused to create a means of recourse by fabricating an interpretation that would expand the

legislatively created procedures for perfection of a statutorily created right of appeal. Since M

filed no Statement of Appellate points, she preserved no error for appellate review.

24. In re B.M.O. and T.L.O. ,(No. 13-07-172-CV) (Tex. App.-Corpus Christi)

(1/10/2008)

M failed to file a Statement of Appellate Points. Accordingly, all points of error were

waived and the termination order was affirmed.

25. In re N.L.H. , (No.07-07-0313-CV) (Tex. App.– Amarillo) (12.06.07)

The Court denied DFPS’ Motion to Dismiss Appeal because M failed to file a Statement

of Appellate Points. The court held that a Motion that requested a New Trial (because the

termination statute was not strictly construed in favor of the parent) did not fail to abide by the

intent or letter of §263.405(i) and thus presented at least one issue for review.

26. In re D.M. And W.M., (No 10-06-00407 - CV) (Tex App. - Waco) (08.15.07 and

12.12.07)

I. Three separate opinions, 2 concurring and 1 dissenting.

1. Justice Gray - Concurring Opinion. Justice Gray first wanted to dismiss the

appeal for lack of jurisdiction because he did not believe the late filing of the Notice of Appeal

(Client did not tell counsel to appeal until after the deadline) amounted to a reasonable

explanation. However, since neither other Justice would vote to dismiss, Justice Gray joined

Justice Reyna to affirm because it was the functional equivalent of a dismissal.

2. Justice Reyna - Concurring Opinion. M’s only point of appeal was the failure of

the trial court to give her a 180 day extension under §263.401(b). Since M did not timely file a

Statement of Appellate Points with this issue, her complaint was not preserved. M’s explanation

for late filing the Notice of Appeal was reasonable and the Court has jurisdiction. The letter

from trial counsel relative to the late filed Notice of Appeal had an explanation but failed to

contain a Statement of Appellate Points. The letter of trial counsel makes it clear that trial

counsel did not understand the applicable deadline for perfection such an appeal. M did not brief

the issue whether §263.405 violated her right to due process. M contended in response to the

dismissal notice that it would be a denial of due process to fault her for failing to file a Statement

of Appellate Points under the circumstances and that the Court should address the issue as

fundamental error. Fundamental error, if found, would allow this point to be considered on

appeal but the legislature intended to force litigants to comply with §263.405(I) and legislatively

precluded the common law doctrine of fundamental error. Moreover, since the due process issue

was not even presented in her brief as a point of error, the court could not consider it.

3. Justice Vance - Dissenting Opinion. The Court created any error in the form of

the presentation. The clerk sent the Appellant’s Counsel a letter advising that the Court would

dismiss the appeal unless she filed a timely response to the order showing grounds for continuing

the appeal. Appellant filed a reply claiming that the process, as applied, would violate her due

process. Having done what we requested, the Court would improperly and for the first time

dismiss this sort of appeal because she failed to raise the issue in her brief even though the letter

did not request a brief. Application of §263.405(b)’s draconian 15 day time frame and

§263.405(I) violate M’s rights to due process. M’s trial counsel filed a Notice of Appeal and

withdrew. Appellate counsel was not appointed until 21 days after the deadline for filing the

Statement of Appellate Points. This cannot comport with due process.

II. Opinion on Rehearing - Justices Reyna and Vance

Raising the due process issue on her Motion for Rehearing, a majority of the panel

concluded that the appointment of appellate counsel 21 days after the deadline for filing

the Statement of Appellate Points violated M’s due process rights. Termination cases require

procedural due process which means an opportunity to be heard at a meaningful time in

meaningful and balanced manner. In evaluating the private interests of the parent and child, the

risk of erroneous deprivation, the state’s interest and the available remedies, the majority held

that both the parent and child have compelling private interest to be protected; there is no

constitutional right of appeal but if it is granted, it must comply with due process and be fair.

The state has an interest in safeguarding the best interest of the child but also has an interest in an

accurate and just determination.

Since the Notice of Appeal is not due until 5 days after the Statement of Appellate Points

and the filing deadline for a Notice of Appeal can be extended if a party files a Motion for

Extension of Time within 15 days of the deadline, a parent contemplating appeal would not have

to inform counsel of their intention to appeal until after their Statement of Appellate Points was

due. Accordingly, the Court held that §263.405(b) and §263.405(i), as applied to M’s case,

violated her right of due process.

Having concluded that the statutes violated M’s due process right, the Court concluded it

was able to address the sole point raised on appeal, i.e., denial of an extension of the case. M

testified that she believed she had complied with all of her Family Service Plan except parenting

classes. She said she failed to communicate with counsel because of lack of transportation, no

phone, she was born with spinabifida, she is disabled and unable to work and has an I.Q. of 62.

However, M failed to attend weekly therapy, weekly parenting classes or attended any court

dates for many months. The MGM testified she could and would have helped but M disappeared

for an unspecified time and told the MGM she was in compliance. The trial court denied the

extension but granted a 3-week delay so that counsel could prepare. While “good cause” is not

the test, M offered no explanation as to how the court’s ruling would have been different if the

court had made an “extra ordinary circumstance” finding, as required by the statute.

Accordingly, the judgment was affirmed.

III. Dissent on Rehearing - Justice Gray

According to the majority, no matter what the attorney told the client, no matter what the

client told the attorney, no matter what the client may have known, any delay is reasonable

because any delay until the client communicates the decision to appeal does not have to be

explained. The court still does not have a reasonable explanation for the late filing of the Notice

of Appeal and the appeal should be dismissed for lack of jurisdiction.

This opinion on Rehearing comprehensively examines and references the problem with

§263.405. (Op11). Some suggestions at reform come from this opinion. The first is the need to

have an additional warning to the parents and counsel by the trial court of their right to appeal

alone with a statutory time line, with deadlines. The second suggestion was to provide for the

possibility of an extension of time to the 15 day limit on a Statement of Appellate Points (Op8).

As the Court correctly notes, every other appellate rule or statutory requirement allows for

extensions. At a minimum the legislature should incorporate the possibility of an extension of

time to the provision regarding the Statement of Appellate Points. (Op. 8).

Another possibility altogether is to allow am Appellate to raise his/her issues in their brief

and scrap the Statement of Appellate Points altogether. We could return to simple time line of a

standard or non-accelerated appeal. These time-tested deadlines allow an adequate amount of

time for Appellate Counsel to obtain a record and formulate points of appeal.

As of this writing, at least the following Appellate Courts have either questioned the

constitutional validity of §263.405(i) or found it to be unconstitutional in particular applications;

1. Waco (10 Court); th

2. San Antonio (4 Court); th

3. Amarillo (7 Court); th

4. Corpus Christi (13 Court); th

5. Houston (1 Court); st

6. Fort Worth (2 Court); and th

7. Texarkana (6 Court). th

When 50% of our Courts of Appeal indicate serious concerns over the Constitutionality

of a statute, it becomes clear that despite any original intent, the statute is operating unfairly and

the legislative needs to repeal or revise this law.

II. Conservatorship and Reversal:

The question or issue in contention here is whether a trial court finding in fair of

termination and subsequent appointment of DFPS as Managing Conservator is a unified or

separable judgment? In other words. Is the finding of conservatorship subsumed written the

termination finding or if it is separately pled and the subject of some evidence at trial, will a

parent (who was fighting to preserve their parental rights at a trial where the only mention of

conservatorship was following the termination) lose conservatorship to DFPS if an Appellate

Court finds the evidence of termination to be legally or factually insufficient to support the

judgement? The answer to this legal controversy may be varied in result depending upon the

recitations in the judgment. If the trial court enters a Decree of Termination and the Appellate

Court finds that there was no evidence of any ground to support termination should the parents

automatically get their children back? The Supreme Court has resolved, in part, this issue which

had resulted in diametrically opposite opinion from two (2) different panels in both the First and

Fourteenth Courts of Appeal in Houston.

A. Cases in support of the conservatorship award surviving termination:

1. In re J.A.J.. (No.07-0511) (Tex.) (2007)

M appealed the termination decree of the trial court. The Fourteenth Court of Appeals

reversed and rendered. DFPS sought review which was granted on the issue of whether an order

appointing DFPS as managing conservator survives a reversal and rendition on the termination

where the conservatorship appointment was not assigned as error in the Statement of Appellate

Points. The trial court had made a finding that the appointment of a parent as managing

conservator would significantly impair the child’s physical health and emotional development.

DFPS had pled for managing conservatorship pursuant to §153.005 and §263.404. DFPS also

cited §153.131. The Court reviewed the relevant statutory provisions §153.002(Best Interest);

§153.005 (Appointment of Sole or Joint Managing Conservator); §153.131 (Presumption of

Parent as Managing Conservator). If the Court terminates parental rights, it must have (in this

case) appointed DFPS as Managing Conservator (§161.207).

The Family Code further provides that the Court may render a final order, without

terminating parental rights, if a finding is made that the appointment of a parent would

significantly impair the child’s physical health or emotional development and appointment of a

relative or other person would not be in the child’s best interest. The Supreme Court agreed that

§263.404 does not apply when the trial court enters an order of termination of parental rights but

disagreed that the appointment of DFPS was solely as a consequence of or derivative from the

termination proceedings. While evidence supporting termination could be insufficient, the same

evidence could still support the appointment of DFPS as Managing Conservator under §153.131.

The Supreme Court further analyzed the differences in both the quantum of proof and

standards of appellate review (firm belief or conviction or abuse of discretion) and that a

decision under one standard would not necessarily be the same under the other standard.

In response to Respondent’s “de facto termination” arguments, the court pointed to the

trial court’s jurisdiction to modify a conservatorship order, a parent’s right to bring suit, and the

mandatory post judgment conservatorship review hearing, under §263.002 and §263.501.

A Motion of Rehearing has been filed seeking a change to the opinion that would

mandate the appointment of a parent as possessory conservator (in the absence of a finding under

§153.191) and the imposition of minimal restrictions on parental possession under §153.193. 2. In re Earvin v. DFPS, (No. 01-05-00752-CV) (Tex. App.–Houston [1st Dist.])

(03.15.2007)

F appealed termination of his parental rights alleging legal and factual insufficiency;

violation of constitutional rights under the 14th Amendment and appointment of DFPS as SMC.

M and F were dating when child was conceived but broke up when F discovered M’s drug use.

The child was born positive for cocaine. M went to drug treatment and F had regular contact

with child during treatment and while M was on weekend releases. When M was finally released

from treatment F was unable to contact M or the child. F had sustained a severe leg injury and

was out of work for several months and returned to work a few weeks prior to trial. M and child

were found in squalid conditions and M was using drugs again. F failed to complete the FSP

ordered by the Court.

The Court of Appeals held that there was no evidence that F intentionally or knowingly

engaged in conduct or allowed the child to be with the M who engaged in conduct that

endangered the child under § 161.001(1)(D)(E).

The Court held that DFPS also failed to meet its burden as to the 4th element of

constructive abandonment under § 161.001(1)(N). It was not enough to show that DFPS had

conservatorship for six months, reasonable efforts towards return and lack of regular contact.

The Agency also had to prove that F demonstrated an inability to provide the child with a safe

environment. The uncontradicted evidence was that F had regular contact with the child while

the child was with the mother in the treatment center and that he did not know where the child

was after the M’s release from treatment. F had access to a home to provide for the child and

returned to work prior to trial. Even if the trial court disbelieved all of the F’s evidence, the loss

of this evidence does not prove that the opposite is true. DFPS also sought affirmance under §

161.001(1)(O) but the Court refused to consider it because it was not a ground found by the trial

court.

Having reversed and rendered on the termination the Court then considered the fact that

the trial court made the findings required under both § 161.205 and § 263.404 and there was

evidence to support the conservatorship finding. The Court concluded that there was sufficient

evidence that F was not willing to provide the child with an environment that was in the best

interest of the child. F did not attend parenting classes or participate in counseling and only

visited the child once while the child was in the Temporary Conservatorship of DFPS. Because

F was able to get to and from physical therapy and to the hospital, etc. to care for his mother, the

Court was able to conclude he was not willing to provide for his child in the same way.

In a concurring opinion, Justice Jennings argues that neither § 161.205 or § 263.404 are

applicable. Those statutes relate to findings made by the trial court when termination of parental

rights is not ordered by the trial court. Since termination was ordered, these independent

determinations are not made and the findings, if any, do not apply. The Court should have

simply reversed and rendered on the termination because that is the Judgment the trial court

should have made.

3. Yonko v. Department of Family and Protective Services 196 S.W.3rd 236 (Tex.

App.–Houston 2005, no pet.)

DFPS alleged that Appellant failed to enroll the child in school, failed to provide the

child a stable home and that termination was in the best interest of the child. The guardian ad

litem was in favor of termination, the attorney ad litem opposed termination.

The Court of Appeals upheld the legal sufficiency challenge but determined the evidence

was factually insufficient on the best interest finding. The testimony from the DFPS caseworker

and Appellant was that termination would be harmful to the child, that mom was given $4400.00

to care for child. There was no evidence of psychological or emotional harm unless termination

was granted.

Appellee has sought a rehearing on the ability of the trial court to assess the credibility of

witnesses and validity to controvert the parent’s story.

Appellant has also filed a Motion for Rehearing on the Education Code finding alleging

that DFPS has the burden to prove the residence restrictions of the Education code did not apply.

DFPS conservatorship of the child was affirmed.

4. In the Interest of J.R and B.R. 222 S.W. 3rd. 817 (Tex. App.–Houston[14th Dist]

2005, pet. denied)

Mother appealed the termination of her parental rights. The record elicited by DFPS

comprised 26 pages. The Court did a thorough and detailed review of the entire record for legal

and factual insufficiency points on appeal. In a legal sufficiency review the Court must look at

all of the evidence in a light most favorable to the termination findings to determine whether

a reasonable trier of fact could have formed a firm belief or conviction that the findings are true.

See, In Re: J.F.C. 96 S.W.3d 256, 264-266 (Tex. 2002). To give appropriate deference to the

fact finder’s conclusion, the reviewing court must assume that a reasonable fact finder resolved

disputed facts in favor of its finding if a reasonable fact finder could do so. Furthermore the

reviewing court should disregard all evidence that a reasonable fact finder could have

disbelieved or found to have been incredible. This does not mean that a reviewing court must

disregard all evidence that does not support the finding. Disregarding undisputed facts that

do not support the finding could skew the analysis of whether there is clear and convincing

evidence.

Mothers post removal relationship with an alleged sex offender, who by a review of the

evidence never had contact with the children is not evidence of endangerment under

§161.001(D) which requires proof of a knowing exposure to a dangerous environment in the

past.

The photographs admitted into evidence did not corroborate the testimony, nor was the

evidence factually detailed in a manner which would allow a reasonable fact finder to conclude

that mother knowingly placed the children or allowed them to remain in unsanitary conditions

while they were staying at her father’s home.

Proof of endangering conduct under §161.001(1)(E) also requires proof of past conduct

not possible future conduct. Failure to obtain and maintain stable housing while the case is

pending also does not support a finding under §161.001(1)(E). There was likewise no evidence

that the failure to comply with medication requirements or to complete counseling while the case

was pending endangered the physical or emotional well-being of the children.

The case was reversed and rendered on the termination grounds but affirmed as to DFPS

being Managing Conservator because Appellant did not challenge this finding and order.

Following remand, another Judgment was entered without family code findings on possessory

conservatorship, rights, powers and duties and access and possession. A follow up appeal on this

issue was unsuccessful and M is currently without access and possession even though the

termination case was reversed and rendered for legally insufficient evidence.

B. Cases in support of the conservatorship award being reversed with the termination:

1. In re Colbert v. DFPS, 227 S.W.3rd 799 (Tex. App.–Houston [1st Dist.] 2006 pet.

granted and pending))

M appealed five (5) termination orders relating to all seven (7) of her children. The cases

were consolidated from different courts for trial. The trial court entered termination orders based

upon §161.001(1)(D) (neglect, i.e., intentionally and knowingly leaving children in dangerous

conditions). In March 2003, M was living in a 3 bedroom house with her 5 children, her mother

and her mother’s boyfriend. Subsequently in early April Trenton Jackson moved into the home.

On April 3, 2003 Jackson brought his 3 year old daughter (by another woman) into the home for

a weekend visit. On April 4 Jackson “spanked or whipped” the child for defecating in her pants.

On April 5, 2003 the child was “whipped” again for the same reason. M had left the home to run

errands and upon her return, she discovered the child had been injured and Jackson was in

custody. The child later died from her injuries, Jackson was found guilty of injury to a child and

was sentenced to life in prison. M did not originally believe Jackson committed the injuries and

allowed Jackson back in the home. The 5 children were removed and placed with a grandfather

and the grandmother. Due to the criminal histories of the mother, her mother and Newman, 4 of

the children were removed and put into substitute care. One child remained with the grandfather.

M participated in therapy, parenting classes and anger management. M visited the

children as allowed and attended all court hearings. The therapist testified as to the strong bond

between the mother and the children, expressed no opinion as to termination, but did state the

children needed stability, consistency, patience and structure. The grandfather who had one of

the children said he would not have concerns if that child were returned to M. The child

advocate (GAL) testified that M’s rights should have been terminated because she minimized

Jackson’s role in the death of his daughter, she had twins by Jackson after the murder, she

allowed the children around Newman who had a criminal history, could not remember if or when

he told her Newman could not live in the home; she showed more attention to the newborn twins

at the family visits and did not believe she had the will to change or that she could provide the

structure necessary for the children.

The DFPS caseworker testified that the goal changed from reunification to

termination/adoption based upon events which happened relative to Jackson’s trial (M testified

for Jackson) and her minimalization of Jackson’s role in the death of the child. The worker felt

the children had been neglected because of their graphic language and their lack of appropriate

socialization. The worker expressed her opinion that M and the children did not have a big bond.

The worker was in favor of termination despite Appellant’s completion of services and active

participation in the case. She could not testify relative to any adoption possibilities. The

grandmother testified as to plentiful food, children being well clothed and appropriately

disciplined. Furthermore, she offered to move out of the home. Newman testified that he moved

out of the home in January 2004 and that M was not home when the injuries occurred to the

child. M was never told her home was unsafe or other housing was necessary.

The Permanency Plan and Progress Report indicated M had secured employment and

provided DFPS with a statement of earnings.

M challenged the legal and factual sufficiency of the evidence to support termination

under §161.001(1) (D) and (2). The Court held that termination may not be upheld on the basis

that relocation would provide better opportunities, more prosperous parents or that the children

might be better off elsewhere. There was no evidence that the environment posed any danger to

the twins and that Jackson’s residence in the home 8 months before their birth did not qualify.

DFPS never visited the home before taking the children. The danger which supported the

testimony of the GAL and caseworker were the past criminal records of the grandmother and

Newman. They offered no evidence of harm, danger, current illegal activity or lack of resources

to provide for the children. The 4 C’s court reports praised the GM for her recovery, church

participation, GED and rehabilitation. Newman’s testimony that any of his drug use was away

from the home was not contradicted. Appellant’s prior history with DFPS, the prior removal of 5

children, the M’s testimony in favor of Jackson and the fragility of the twins as reasons for

removal of the twins were all unrelated to the home environment the children were in at the time

of removal and could not support termination.

The Court again rejected the DFPS claim that despite the finding under (D) the Court

could uphold termination on any ground pled because their were not any findings of facts and

conclusions of law. Accordingly, the Court reversed and rendered relative to the twins.

The case was remanded as to factual insufficiency on the best interest prong with respect

to the other five (5) children. Two (2) of the children had expressed a desire to live with

Appellant. No evidence was presented as to the desires of the other three (3) children. The

evidence supported M’s claim that she had been able to take care of the children’s physical needs

but that she would likely need some assistance. The therapist (provided by DFPS) testified M

had made good progress in recognizing Jackson’s role in the child’s death and moderate progress

in taking responsibility for her protectiveness. M testified as to “no further contact with

Jackson” and that a lot of stuff came out in this proceeding that she had not previously known.

She was not allowed to know everything or otherwise hear the rest of the testimony. There was

no evidence that the children would be emotionally or physically endangered by the return of the

children. The evidence of M’s parental abilities was that they were good before and that they

had improved with services. M had done all of the services offered by DFPS, was employed,

obtained her GED. DFPS had no specific adoption plans in their current placement and M had a

stable place for the children to live with all objectionable people having volunteered to move out.

There was no evidence of any stability as to any proposed placement by DFPS. There was no

evidence Jackson abused any of M’s children or that she knew that Jackson would injure or kill

his own child. The Court reversed the conservatorship order as to DFPS on the other 5 children

because the appointment of DFPS as MC was a necessary consequence of the termination and no

findings were made under §263.404 to support the order of managing conservatorship with

DFPS. The dissent by Justice Jennings disputes only the remand on the unchallenged

conservatorship finding in favor of DFPS.

2. In re Walker v. Department of Family and Protective Services, (No. 01-06-00253-

CV) (Tex. App.–Houston [1st Dist.]) (12.21.2006)

The trial court terminated M’s parental rights for leaving the children with numerous

different men in a known drug neighborhood, slipping out the back door (when DFPS arrived),

leaving the children alone with a 4-5" knife within reach and a razor blade with a white residue.

F was in jail on pending charges of sexual assault on an unrelated minor. F and M had prior

cocaine convictions but no evidence was presented as to when the convictions were obtained. F

testified at trial that he had sold drugs but that he was not a drug user.

The trial court terminated F’s rights under § 161.001 (1) (D) (E) and also terminated M’s

rights. Subsequently, M decided to dismiss her appeal and that Judgment is final. The trial

court, upon termination, named DFPS as Managing Conservator under § 161.207. F alleged that

since he was in jail, DFPS did not present any evidence that he engaged in conduct or knowingly

placed or allowed the children to be placed in conditions or surroundings that endangered them.

The mere fact of incarceration does not make endangerment. The Court of Appeals agreed that

the evidence was legally insufficient under both (D) and (E).

The Court also held that while the appointment of DFPS as Managing Conservator was a

necessary consequence to termination (§ 161.207); the trial court did not make the necessary

findings under § 263.404; and the Court of Appeals was not in a position to make the necessary

orders under § 161.205 by either denying the Petition to terminate or render any orders in the

best interest of the child. There is no legal or policy reason for a Court to require a parent to

object to the trial court on the appointment of DFPS or bring an independent ground on appeal

relative to the same. The Court found it inappropriate to shift the burden from DFPS to the F

because to do so would deprive him of his constitutionally protected rights without due process

and due course of law.

3. In the Interest of J.A.J. (No. 14-04-01031-CV) (Tex. App.–Houston [14th Dist] 2005,

reversed in part) (See IIA1 above).

Mother appealed termination of her parental rights. The evidence reflected that Mother’s

husband (who was tired of the child’s suicide threats including child’s self inflicted attempts to

choke himself with shoe strings) took the shoe strings and tied them around the child’s neck and

choked the child leaving visible marks. The child also had a 6" wide bruise across the back of his

left leg.

The Court did a legal sufficiency review and a factual sufficiency review. In a factual

sufficiency review, the Court must consider all of the evidence equally both disputed and

undisputed. The Court must consider whether the disputed evidence is such that a reasonable

fact finder could not have resolved the disputed evidence in favor of the finding. §161.001(1)(D)

requires a showing that the child was knowingly placed in an environment dangerous to his

physical or emotional well being. Section 161.001(1)(E) requires the parent to have personally

engaged in conduct or knowingly placed the child with persons who engaged in conduct that

endangered the child.

There was no evidence of past abuse or injury that would have led Mother to know that

her husband would have done anything like the shoe string incident to the child. Mother admitted

to whipping the child with a belt the day before DFPS picked up the child because “he was going

to burn down the house”. The court evaluated whether the discipline was excessive and found the

evidence was insufficient as a matter of law under the grounds sought for termination.

The Court reversed the decree of termination and the DFPS Conservatorship order and

dismissed the suit.

C. Current Status

After J.A.J. was decided and the Supreme Court held that the Managing Conservatorship

question was waived by the failure of counsel to file an Appellate Point on the issue of

conservatorship in a case where specific exclusionary findings were made in the decree a Motion

for Rehearing has been filed to challenge the issue of why the court would not also render on the

issue of Possessory Conservatorship and remand for a new trial on the issues of rights, powers

and duties and Possessory Conservatorship. In this case the Decree made findings under

§153.131 that appointment of the parent as a Managing Conservator would endanger the physical

or emotional well being of the child. It did make any findings relative to §153.191 that

appointment of the parent as a Possessory Conservator would endanger the physical or emotional

well being of the child. In the absence of such a finding the law presumes parental appointment

as a Possessory Conservator. A successful challenge to the termination places the parent back

into the positions of parent and in order for the Decree to follow the requirements of the Texas

Family Code, all parental issues should be resolved. DFPS is asserting that M should have also

placed the question of her appointment as a Possessory Conservator in her Statement of

Appellate Points.

Colbert is also in the Texas Supreme Court on the issue of the conservatorship challenge

(§153.131 and §153.191 findings are not contained in this Decree) and on whether the court

of appeals can imply findings as to other grounds not found by the trial court in the termination

order. (See Section 4). With more litigation in the area of termination and more reversals, it is

clear that the Appellate Courts have struggled with this issue. When there are best interest

considerations, but no evidence of grounds the Courts have been hard pressed to find a

satisfactory resolution that protects the rights of parents and the physical or emotional well being

of the children.

III. Sufficiency Reviews of Grounds for Termination

When you couple an expanding list of ways in which parental rights can be terminated

and then unreasonably curtail that same parents’ rights to a fundamentally fair appeal, it should

be easier for the courts to affirm termination orders. It is clearly the trend (subject to the

constitutional questions) with respect to §263.405(i) cases. Nevertheless, there also seems to be

an interesting trend in the analysis of the grounds for termination. In this regard, there seems to

be a higher degree of scrutiny as to the grounds and both the quality and quantity of proof

necessary to support termination.

1. Colbert v. DFPS (see Section II B 1 above):

Removing subsequently born children based upon history or assessment of risk alone is

legally insufficient to support termination under §161.001(d). There has to be evidence of actual

endangerment.

2. Earvin v. DFPS (See Section II A above)

Where F was not aware of the hereabouts of M and child until child came into DFPS

Custody, the evidence was legally and factually insufficient to support termination under

§161.001(1)(D)or(E). Failure of a F to prove that he had an ability to provide for and call for a

child under (N) does not prove the opposite. (See also AAA).

Reliance upon the paternity registry was a ground for termination does not relieve DFPS

to meet all of the elements of its proof requirements to support (N). Minimal efforts or lack of

evidence of “reasonable efforts” to return the child (i.e. no home study, little evidentiary mention

of F, failure to include F on FSP, and failure to establish F made no attempt to visit) supported a

no evidence finding under (N). The failure to prove a case against the father is not by

termination.

3. In re J.A.J. ( See II B 3 above)

Court of Appeals findings - not challenged in Supreme Court. In analyzing the difference

between (D) and (E) the Court noted that in the absence of a history of abuse or a specific act or

omission involving endangerment, there is a critical distinction between the “conditions or

surroundings” under (D) and the “conduct” under (E). To support termination under (D), DFPS

had to prove by clear and convincing evidence that M knowingly placed the child in dangerous

conditions or surroundings. Failure to complete a post petition FSP is in and of itself insufficient

to support termination under (D) especially when DFPS did not challenge M’s explanations for

non-compliance. (D) applies only to the environment and it is the “environment” and not

“conduct” which must produce the injury or Endangerment Acts of discipline are not relevant

under (D) and in and of themselves, does not equate to abuse under (E).

Termination under (E) cannot be based on a single act or omission alone. Where M was

allege to have knowingly allowed F to engage in conduct which endangered the child, DFPS

must prove that she had been aware of the danger to the child and knowingly allowed her child to

be with a person that endangered the child

4. Ruiz v DFPS , 212 SW 3rd 804 (Tex App. - Houston [ 1st District] 2006, no pet.)

A parent’s inability to explain injuries does not equate to proof of responsibility.

Evidence that a parent removed a child from a care giver (without evidence of a placement

agreement or safety plan or knowingly that a DFPS referral had been made) is not evidence of

any attempt to conceal injuries. DFPS must provide some evidence that a parent caused the

injuries, was present when the injuries occurred, knew that the person with whom the child was

left was a threat to endangerment or that the injuries were the result of abuse. If a child was

injured and some treatment was administrated but such treatment was somehow inadequate,

DFPS was required to show that it was inadequate and that the parent was responsible for the

inadequate treatment.

5. In re J.R. and B.R. (See II A 4 above)

Mothers post removal relationship with an alleged sex offender, who by a review of the

evidence never had contact with the children is not evidence of endangerment under

§161.001(D) which requires proof of a knowing exposure to a dangerous environment in the

past.

The photographs admitted into evidence did not corroborate the testimony, nor was the

evidence factually detailed in a manner which would allow a reasonable fact finder to conclude

that mother knowingly placed the children or allowed them to remain in unsanitary conditions

while they were staying at her father’s home.

Proof of endangering conduct under §161.001(1)(E) also requires proof of past conduct

not possible future conduct. Failure to obtain and maintain stable housing while the case is

pending also does not support a finding under §161.001(1)(E). There was likewise no evidence

that the failure to comply with medication requirements or to complete counseling while the case

was pending endangered the physical or emotional well-being of the children.

6. In the Interest of A.A.A.., (No.01-07-00160-CV) (Tex. App.–Houston[1st Dist.])

(11.15.2007)

M appealed termination of her parental rights under §161.001 (1)(E)(F)(N)(O) and (2).

The Court of Appeals held that M’s single arrest and incarceration for two(2) days for shoplifting

cough syrup for her sick child, and the resulting report of M’s absence to DFPS by Covenant

House did not warrant termination. In this regard, the Court held that a single criminal episode is

not a course of conduct which would support termination under (E); failure to maintain stable

housing or employment is not enough by itself to support a finding under (E); failure to comply

with a FSP or provide regular financial support does not by itself support a finding under (E);

failure to support under (F)requires the child to have been alive for a period of 12 months prior

to the filing of the petition; M does not have a burden to prove her ability to provide the child

with a safe environment; DFPS has the burden to prove by clear and convincing evidence that

the parent has demonstrated an inability to provide the child with a safe environment (N); M’s

failure to provide DFPS with proof that she could adequately care for a child is not evidence that

she could not do so; transportation concerns do not equate to evidence of an inability of M to

provide a safe environment (N); since the child was not removed from M due to abuse or neglect

but simply because M was missing a mandatory statutory element of proof under (O) was not

met and the evidence was legally insufficient to support termination.

Since §263.405(i) requires that all appellate complaints be included in the Statement of

Appellant Points, the failure to challenge the appointment of DFPS as MC means that the

conservatorship appointment should be upheld. A Motion for Rehearing has been filed to

challenge the non-appointment of M as a PC even though no statutorily required findings were

made.

IV. Appellate Court May Only Review Specific Grounds found in Termination Decree.

The question here is whether findings of fact and conclusions of law are necessary in

termination cases and if they are not sought whether the Court may imply any ground for

terminations which was pled and upon which there was evidence before the trial court and the

parent failed to challenge or appeal all of the other pled grounds. The First Court of Appeals has

said no to this question.

A series of cases have wrestled with the issues. Initially in Thompson v DFPS , 176

S.W. 3rd 121 (Tex App. - Houston [1st Dist] 2004, pet denied) the First Court of Appeals held

that in the absence of Findings of Facts and Conclusions of Law, termination could be supported

on any other pled ground even though it was not included in the judgment. In Vasquez v DFPS

, 190 S.W. 3rd 189,194(Tex App. - Houston [1st Dist] 2005, pet denied) the First Court of

Appeals re-evaluated their position in light of the Family Code requirement that the trial court

specify the grounds for termination and found that the Family Code requires the Trial Court to

enter an order for termination only if it finds grounds for terminations by clear and convincing

evidence. §161.206(a)(V.T.C.A. 2005). Accordingly, the Court held that a parental rights

termination can only be upheld on grounds pleaded by DFPS and found by the trial court. In

Cervantes - Peterson v. DFPS, 221 S.W. 3rd 244 (Tex. App.–Houston [1st District] 2006, no

pet.) the First Court of Appeals upheld Vasquez and expressly overruled Thompson. This was

re-affirmed in the Ruiz case.

In that case, the DFPS referral alleged and proof indicated that the child was left with the

paternal great-grandmother for periods when mother’s whereabouts were unknown; the child had

cigarette burns on its arms that Mother could not give a consistent explanation for and the mother

failed to complete the Family Service Plan. The Court firmly rejected the DFPS argument that it

should be able to affirm the judgment on any of the nineteen grounds pled, which are supported

by some evidence, regardless of any express ground relied upon by the trial court in its judgment

and regardless of the requirement that the grounds be stated in the judgment under §161.206 (a).

The First Court overruled its prior holding in Thompson and has now held in Vasquez,

Cervantes (En Banc) and this case that “a parental rights termination order can be upheld only

on grounds both pleaded by DFPS and found by the trial court. In this case, the Court made

findings under §161.001(1)(D) and (E). Under §161.001(1) (D) the Court looks to the

environment (neglect) to see if it is the source of the endangerment. Under §161.001(1)(E) the

Court looks to see if the danger arises solely from the parent’s conduct (abuse) established by the

parent’s actions or failure to act. Termination under (E) must be based upon more than a single

act or omission. After a legal and factual sufficiency review, the Court found that no evidence

was presented as to who made the referral, or if the mother was alleged to be responsible, that the

child was in her possession when the burns occurred, that she knew that placing the child with

her grandmother would have endangered the child or that there was any prior history of abuse or

neglect with her grandmother. The Court further found that the evidence did not support the

speculation or an inference that anything wrong had occurred by mother removing the child from

her grandmother, that she knew that a referral had been made to DFPS or that the removal was

done in violation of a court order or family service plan. Finally, no evidence was presented at

trial that Ruiz was present when the child injured her face at the Chappa home, that the injuries

were caused by abusive treatment, that the treatment was untimely or ultimately deemed

inadequate, or that the child was endangered by the allegedly deficient treatment. With respect

to the (E) grounds, DFPS also referenced mother’s admitted marijuana use as grounds for

termination. The Court found that the evidence of mother’s alleged narcotic use was extremely

limited and no evidence of an ongoing problem was presented. Mother admitted to use one time

and no evidence was presented to contradict it. Termination must be based upon more than a

single act or omission. Furthermore, there was no evidence that mother used narcotics while the

child was in her care and the record indicates the child was likely in the care of her grandmother

at the time. Accordingly, the judgment was reversed and rendered. In re Ruiz v. DFPS 212

S.W. 3rd 804 (Tex. App. - Houston [1st District] 2006, no pet.)

The issue of implied findings is presently pending before the Texas Supreme Court

in Colbert.

Conclusion

The trends discussed here represent some significant challenges facing the citizens and

government of Texas. In our zeal to advocate for children, we notoriously underfund DFPS and

provide short term band - aids to long term issues. As the wounds grow so does the cost of the

band-aid. And we never really seem to get at the root of the problem. Should our legal system be

fundamentally fair or should we have cases decided on legal theories never discussed, argued or

found by the trial court? Should we learn from and derive substantive and procedural wisdom

from a multitude of decisions where judgments are affirmed or should we evaluate the meaning

of reversals and utilize them to design a system which is fair to everyone? Should we recognize

basic due process principles upon which our country was founded and allow all parties and

persons of interest a just and fair trial and a reasonable and fair opportunity to appeal an

erroneous decision? Is it time to legislatively disregard the fiction that permits parents to be

deprived of their opportunity to try the conservatorship case once their parental rights are re-

instated? Are we able to accept the premise that in the haste to try to expedite permanency and

resolution of termination cases we created a constitutional quagmire and put at risk key

components of procedural due process that damage both children and parents?

What will it take to stop this trend? A cross-section of community leaders, constitutional

and civil rights advocates, lawyers, judges, child advocates and legislators of courage. In the

legislative process, parents do not usually have an advocate. DFPS clearly has advocates and so

do children. Asking that the process be fundamentally fair and constitutionally sound is not

“advocating for the child abuser”; it is advocating that the basic principles of the republic should

be applied across the board. We should never put ourselves in the position of discarding our

freedoms and rights because it is easier to so do than it is to say that a parent accused of abuse or

neglect should have adequate recourse in our courts. It is saying that as individuals a community,

and a state, we should be better than our law currently allows us to be.

* I would like to acknowledge and thank Duke Hooten and Trevor Woodruff for allowing me to utilize their presentation from their 2007 Advanced Family Law presentation in the preparation of this paper.

connolly trends in dfps termination cases...anytime to abuse or neglect your children or put...

Documents